At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
For the Petitioner: C. Prakasam, Advocate. For the Respondents: R1, T.P. Manoharan, Advocate, R2, T. Murugesan, Sr.GP (P).
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for the issuance of Writ of Certiorarified mandamus calling for the entire records of the tender notification issued by the respondent in Advt No.1-1/SBR/Tender/PAPSCO/2013-14(1) dated 11.10.2013 and quash the same and consequently directing the respondent to call for the fresh tenders by removing the unreasonable conditions.)
1. This writ petition is directed against the notification issued by the Puducherry Agro Products, Food & Civil Supplies Corporation Limited (PAPSCO) calling upon the Rice Millers and Traders to submit their bids for supply of 3000 metric tons of rice per month for a period of six months. The procurement is stated to be for the purpose of distribution of free rice to family card holders in the Union of Puducherry.
2. The notification dated 11.10.2013 permitted those Millers/Traders having turn over of Rs.6 Crores per month alone to be eligible for submission of bids. Subsequently, a pre bid meeting was held on 17.10.2013 and a decision was taken to revise the turn over from Rs.6 Crores to Rs.3 Crores per month. The petitioner is aggrieved by the tender condition with respect to the turn over. According to the petitioner, there would be only few bidders who are eligible to take part in the tender in view of the onerous condition.
3. The writ petition is therefore primarily against the condition imposed by Puducherry Agro Products, Food & Civil Supplies Corporation Limited (PAPSCO) with regard to the monthly turn over.
4. During the pendency of the writ petition, I have permitted Puducherry Agro Products, Food & Civil Supplies Corporation Limited (PAPSCO) to open the tenders from the Rice Millers/Traders, but however, they were restrained from confirming the bid.
5. The Puducherry Agro Products, Food & Civil Supplies Corporation Limited (PAPSCO) received bids and a report to that effect was submitted before this Court. Even though the petitioner has come up with the grievance that none of the Millers or Traders from Puducherry would be eligible to take part in the tender on account of the stipulation with regard to turn over, the records produced by PAPSCO proved that there were bidders who qualified for participation in the tender.
6. The only question that arises for consideration is as to whether this Court would be justified in interfering with the tender conditions.
7. The first respondent is a State within the meaning of Article 12 of the Constitution of India. The first respondent issued a notification calling for tenders. The first respondent wanted uninterrupted supply of rice so as to enable the Corporation to supply free rice to the family card holders. The first respondent should be in a position to ensure that the successful bidder would be able to supply rice without any delay or default. It was only for the said purpose, minimum turn over was fixed. It is also a matter of record that the petitioner and Millers and Traders took part in the pre bid meeting and it was only on account of the decision taken in the said meeting, the turn over was reduced from Rs.6 Crores to Rs.3 Crores. The petitioner was also a signatory to the said decision. It was only thereafter the petitioner has come up with this writ petition.
8. The judicial review is essentially against the decision making process. It is not within the province of the Court to give a finding as to whether a particular tender condition is onerous to a particular party. The petitioner has no case that the tender conditions were tailor-made. The Government wanted to ensure that the contractor would supply rice by adhering to the time schedule. It was only for the said purpose certain conditions with regard to turn over was fixed. Since the tender is a time bound one for a period of six months, the first respondent was fully correct in imposing the minimum turn over. The condition cannot be categorised as arbitrary or to defeat the rights of others or made with a view to exclude competition.
9. The Hon'ble Supreme Court in (2013) 7 Supreme Court Cases 1 [Arun Kumar Agrawal Vs. Union of India and others] observed that the Court cannot sit in judgment over commercial or business decision taken by the State or its instrumentalities, which has been duly taken after evaluating and assessing the monetary and financial implications, unless the decision is in clear violation of statutory provisions or is perverse or is taken for extraneous considerations or improper motives.
10. The tender condition with regard to annual turn over was reduced at the instance of the Traders and Millers. Thereafter
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, the Millers have submitted their bids. The first respondent found that there were bidders, who would be in a position to supply rice as per the actual requirement. Merely because the petitioner would be ineligible to take part in the tender process cannot be a reason to set aside the tender conditions with regard to eligibility. I do not find merit in the contention taken by the petitioner. 11. In the upshot, I dismiss the writ petition. No costs. Consequently, the connected miscellaneous petitions are closed.